day. a bacon sandwich in england that sells for, well, $235. rare heirloom bacon, saffron and gold dust inspired by the over the top burgers. >> $235. that's a pair of shoes. i don't know about that sandwich. >> "america live" starts right now. >> megyn: fox news alert on president obama's pick to lead the defense department. we are hearing chuck hagel is in serious trouble in this hour and expecting release of a new video at any time that could make things a whole lot worse for him. welcome to "america live" everyone. i'm megyn kelly on this special edition of "america live" on a thursday and we'll get to that in a bit. senate republicans appear ready to mount a full scale filibuster looking to hold up former republican senator chuck hagel's confirmation as secretary of defense. this at a time when the defense department is most in

need of strong leadership, but the republicans have real questions whether this is the man to provide it. they accuse mr. hagel of hiding parts of his history, including at least two controversial speeches on the mideast and his thoughts about israel. and just within the past hour we learned that video of one of those speeches is expected to come out any moment now. chris stirewalt the is our fox news digital editor and power play.com. and lisa has experience in the middle east, counterterrorism and specifically iran. chris, i love the car nation, happy valentine's day to you both. and this is what democrats did not want. didn't want a process that would go on and on and a quick vote on hagel whose confirmation hearings didn't go well, get the vote done on friday, that's it. there's no ruleout of information and new things popping up and they're not going to get their wish, chris, because new things are

coming out, including today and the speeches could pose a problem for him? >> that's right, you have a group of people who are arguably adamantly opposed to former senator hagel becoming the secretary of defense and their strategy all along and we see this in nominations is delay, delay, delay, to create more time to create that window of opportunity to find the one or two democrats that they would need in order to get hagel rejected, and this video-- it may not be the thing that does it, but it's exactly potentially the kind of thing that could undo a nomination. >> he was controversial before today, lisa, because he had made comments about the jewish lobby and many who are-- who are pro israel feel he is not. and that was one of the things he's had to try toover come with, you know, only moderate success. tell us what we think is in these speeches? and i know you're looking at even a third speech you

believe may be equally if not more controversial. >> so the thing that we're looking at here is not one isolated case. it's a pattern and there's many of these speeches that he hasn't been, you know, transparent about and that's what we're looking for here, disclosure. he was supposed to kind of disclose any speech that he gave before 2008, but we're looking at-- >> after 2008. >> after 2008, rather and we know that two of these existed where he talked america was in bed basically with the israeli government and that's not the way we should be, and should have a council tied with iran and there was a political status out of new jersey that blogged about the event and fox news has been trying to find the tape and you know, kind of have the original, but we have a blogger who actually attended and wrote about it on his blog and said how he

talked again about how the israeli government is basically dictating what we should do and again, this political strategist who put on his blog, he actually is pro hagel. he would like to see-- >> these comments are controversial. he's already on the record, chris, with the jewish lobby comment and that he said he regretted. that was back in 2006, but now there's a question about what he said to these other organizations and our own james rosen reported that in one of the speeches, he appeared before the arab american anti-discrimination committee, a group that has a history of controversial statements about israel and in july of 2006, a righter on their be website identified hagel as the lone member of congress willing to stand up to the israeli lobby and went on to call george bush and condi rice, saying they have a lot of blood on their hands and rearming israel which allows the slatter of arabs to continue. and should these lawmakers

have answers to what the they said to the groups before they vote on him. >> you get the idea why senator senator hagel was not in the early rounds of the process, owing to the simple fact, anything that's going to blow him up is this issue. he placated pro israel democrats saying, look, i held a point of view, but whatever, that's not my point of view. what i feel now is that israel is a sacred ally and that we have a special relationship and we have to do all of that. if in fact it comes out that this was not an inartful phrasing when he talked about the jewish lobby and things like that, but if in fact he was talking about this on multi-occasions, you raise the possibility that some of democrats he placated in the first round say, now i have some questions and the big danger for senator hagel is if you don't get to the vote soon shall the 60 votes soon and brings it out for a vote and needs only 51 votes and this

thing hangs over and hangs over, it may get rotten on the shelf. >> megyn: bret baier said they were up to 57 and need three more republicans to say, yes, the guy deserves a vote in order for him to get one. before i let you go, lisa, why, you know, what he sounds like somebody who feels the way jimmy carter feels when it comes to the issue of israel and palestinian relations. that's controversial to some in this country, but not to everyone. why should it be a deal breaker for him taking over as secretary of defense? >> i mean, our pro israel stance, our friendship, open ally for so many years and looks like the obama administration found the one single republican and trying to use the fact that he's a republican to get him passed through and a guy in history whose record shows that he's been speaking radically against israel and relationship with israel and

wants to reframe that and how many chances is he going to get at this point now that he wants this nomination to go through, to repackage his views on israel, on iran in order to get past it. again, his record speaks for itself. this wasn't a one time issue and it's incredibly serious. >> we'll see if we get the remarks during the next two hours, we'll play them for you. in the meantime, whether he gets the up or down vote has a question mark on it. >> panel, thank you so much. >> you bet. >> the latest on the showdown over the confirmation, head over to foxnews.com and read up on the controversy, as the battle lines are drawn over president obama's pick for our next secretary of defense. never been a filibuster on the secretary of defense so this would make history. for the first time today we're hearing the terrifying story of a couple who found themselves at the mercy of the fugitive suspected cop killer, christopher dorner. jim and karen reynolds did not see it coming as police searched for dorner inside the woods of the california

mountain home. then, he suddenly sneaked in their door and in that moment, they thought they were dead. what happened over the next 15 minutes seemed to them like hours. trace gallagher live in our west coast news room, trace. >> reporter: for jim and karen reynolds, this is a rental property, this condominium and noon or shortly before noon on tuesday they went to that condo to tidy it up a little bit and well, they walked in right on christopher dorner. karen reynolds says that she tried to run down the stairs, but dorner ran after her and caught her and told her calmly not to scream, listen. >> he talked to us, trying to calm us down and saying very frequently, he would not kill us. and that's exactly how he had said that. he told us about the man in the boat in san diego. >> he didn't kill him. he wasn't going to kill us. >> reporter: remember shall the man in the boat, he tried to steal that boat, he said,

to go to mexico, but couldn't get it started because the rope got caught in the propeller. back in the condo he told the reynolds he simply needed to get out of big bear and they were a means to an end. but when he took them into the bedroom and tied them up and put pillow cases over their heads, they believed he would kill them. listen. >> when he had me laying on the ground, yes, i really do. >> yeah. >> i thought he's changed his mind and trying to calm us down and get us in here and he's going to do it. but once he got us bound then he went out to the bathroom real quick, close, and came back and took a couple of washcloths and stuck one in each of our mouths. >> reporter: that's when he stole their purple nissan and fled. karen reynolds was able to stand up and with hands behind her back, able to grab her cell phone, put on the speaker phone called 911 and set off the motion, the shootout and standoff that ended in flames.

the reynolds said last friday they left the door of the condominium open which is why when police checked the cabin and condos and no sign of forced entry they never looked further. keep in in mind, that condominium had cable tv and internet, it was less than a hundred yards from the police command post with a balcony, so, for five days, while this is going on, christopher dorner could have been watching this surge live on television, megyn, and while police were looking for him. he may have been looking out at them. >> megyn: it's incredible to picture that. and to think of him sitting there watching the coverage of his own misdeeds. trace, thanks. coming up here, a special surprise for you fans of "america live," but you have to wait until the end of the show. and you have to stay tuned for the whole two hours which you do every day, right, before you have to tune in again in about oh, can't do the math,

less than two hours. also, critics are accusing president obama of going to bat for american unions once again by renominating two members of the nlrb, national labor relations board whose earlier appointments had been ruled unconstitutional. what were they still doing sitting on that board issuing rulings? why are they still doing this when a federal court of appeals said their appointments were unconstitutional? lou dobbs is next. plus, a lot of coverage about marco rubio's state of the union response. so much of which has been focused on the moment, he took a sip of water. he was thirsty. much less coverage about what he actually said. that's america today, folks. just ahead, the new debate about the media and politics. and a group of also students gets in trouble for chanting usa, at a high school basketball game. was it a show of patriotism or a racist cheer? we'll report, you decide.

. >> it has nothing do with being patriotic or unpatriotic, it has to do with the fact that they're making a chant regarding that we're from usa and you're not. [ male announcer ] in blind taste tests, even ragu users chose prego. prego?! but i've bought ragu for years. [ thinking ] wonder what other questionable choices i've made? i choose date number 2! whooo! [ sigh of relief ] [ male announcer ] choose taste. choose prego.

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>> fox news alert as we get new images, take a look here, of that damaged carnival cruise ship, it's now towed not by one, not two, but by three tug boats simply to get back to shore. a look at the aerial. do you see anything on top of the cruise ship, the people sitting on the ship, three, four days without power. limited toilets, limited food. and you can only imagine the situation and how unhappy those people are and unhappier by the minute and now we're hearing from passengers on board who are talking about the conditions, with descriptions we'd rather not

share. you get the general gist. the toilet thing does it for you, doesn't it? we're told that they're delayed again getting the boat to shore because of the wind. don't have the power they need. we're live at the dock as they pull in 45 minutes from now. stay with us. well, in a case at first you don't succeed try and try again, critics are accusing president obama going back to bat for american unions by renominating two controversial picks for the national labor relations board, that decides disputes between management and company and big labor, unions. this just weeks after a court of appeals said his recess appointments of these same two people were unconstitutional. lou dobbs is host of lou dobbs tonight on the fox business network, now, here is the thing that amazes me, the court of appeals for the d.c. circuit one level down from the u.s. supreme court says you had no business appointing them.

the senate was not in recess and those appointments were unconstitutional and the decisions they've made are of no value now. because it's as if they were never on the board and those all get thrown out and they know more decisions from them because they're unconstitutional and yet, the board is still in session and they're proceeding as if that never happened and president obama says by the way, i'm renominating them to go through the formal senate process that they never had the first time because harry reid never got them a committee hearing. >> it's starting to seem just a bit like the president doesn't have much regard for that co-equal branch of government stuff or checks and balances. he has a very specific agenda at work here, and that is to move straight ahead with the nominations of sharon block, robert griffin. there's only one, the chairman, mark, mark gaston pierce who is lawfully confirmed by the united states senate, it's--

>> supposed to be five on there. right now three, only one is whom is there legitimately. >> after the d.c. court of appeals rule it's unconstitutional, which in the views of many makes all of tfofe decisions they've made over 200, not valid and have to be reconsidered at some point by a lawfully-- >> if the supreme court reverses the lower court they're back in business. right now the only decision standing and they haven't officially appealed it, nlrb, is the one saying you do not belong on that board and you never had the authority to appoint them, president obama. >> there are a couple of levels here, several levels in which this president is basically telling everyone to go to hell by not removing those appointees, he's telling the d.c. court of appeals, go to hell. by not appealing the decision, he's telling the d.c. court of appeals and in fact, the entire country to go to hell

because he is now operating extra-legally. he is operating under his own fiat and his direction to those who are sitting on that board, the so-called recess appointees who have been thrown off the board by the d.c. court of appeals, he's saying we're going to do exactly what we want, the way we want, and by the way, not only are they sitting there, they have he' rendered 26 decisions since the ruling of the appellate court. >> all of now which are going to be in question, same as the 200 that preceded them. this is not a service to the entities that have brought their cases before the nlrb who are now going to have to litigate everything if the supreme court upholds the lower court ruling, takes the case and then-- >> all of the cases in which there's been a ruling will not only have to be cited upon by a further court, in this case it should be the supreme court to come to a quick resolution, these companies, these unions

are all going to have to relitigate, retest every one of these issues, and meanwhile, we are watching a confirmation process unfold in the senate on two appointees, national security appointees that the secretary of the department of defense, and the head of the cia, john brennan, they are in a stalemate here. we have just written what looks to be a death nell for the nomination of chuck hagel, if indeed all that-- >> and if it holds up. and the thing is, but the president renominating these two, that, that is not extra-legal. this is what should have happened the first time he nominates them, they get a hearing, you know, it's fine. the republicans are never going to like his pick for the nlrb and the democrats are never going it like the republican president's pick for the nlrb. but this is going the way it always should have gone and they'll get their hearing, right? is there a problem with him

renominating the same controversial people. they were so controversial, he decided to give them recess appointments the first time. >> they have participated in what has been unlawful, work on the nlrb. >> well, that wasn't their fault. >> of course it is. >> megyn: no it isn't. the president says trust me, i can do the appointment and you do your work. >> if the president says and the court says-- >> even though they appeal the supreme court is going to reverse that, that's what they're going to tell them. >> they don't have a ruling or a finding from any lawfully constituted or body or agency saying ignore the d.c. court of appeals. this is a pure political decision on the part of this president saying, i am going to run this and the hell with whoever wants to step up in front of me, including the united states judiciary system. >> megyn: we will see if they get approved as they go through the process that, as it was intended to occur. lou, thank you. >> great to be with you. >> megyn: well, in 2012 he made history when he competed

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>> what would valentine's day be without cheesy animation. there's even love on valentine's day sort of. republicans and democrats posting online valentine's day cards with heart and humor. check these out from the g.o.p.'s website, this one features president obama with the caption, i told my jobs council, let's just be friends this valentine's day day. this one of house leader nancy pelosi, spare no expense this valentine's day, we don't have a spending problem.

and one more vice-president joe biden, today's three-letter word is "love", and the triple c website, marco rubio you might have a drinking problem, but we'll still be yours. love house republicans. and to big oil from the house republicans supposedly with a mental, we could vote 109 times to make you richer and it still doesn't show you how much he we care. these are good. and the last valentine to millionaires, it reads, i'd love you even if you were poor, but then i'd raise your taxes and take away your medicare. from house republicans. you've got to tip your house to both sides on those, they're kind of funny. well, on a more serious note have you promising one, preventing autism in unborn babies could possibly be as simple as taking a folic acid stument supplement, according to a

stunning new study. joining us dr. marc siegel part of our fox news medical a-team, langone medical center. folic acid get it over-the-counter at the cvs and grocery store. we know that you're told to take at that when you're pregnant and it can prevent that. >> it's great to take while you're pregnant, it's in prenatal vitamins and shown to prevent neural defects when your nervous system is forming as a fetus, folate helps you, it works on your cells, responsible for growth, a tremendous vitamin, vitamin b. folic acid is the supplement. find it in regular food, green leavey vegetables, peas, eggs, fortified cereals, you might not need that if you're not pregnant. but if you're pregnant you need that before the study came along.

the study at norway looked at 85,000 people over-- >> children. >> children. >> megyn: incredible. >> found that of 270 who had autism. mothers were 40% more likely not to be taking folic acid. 40% more likely not to be taking, megyn, that's not proof. that doesn't mean if you take folic acid you're not going to have the problem or if you don't take it you're going to have the problem, it's not proof, but it's accumulating evidence as you might say as the judge. it's accumulating evidence, and autism is a problem with socialization skills and clearly in your logically based and another study from norway showed language problems in people that were folic acid deficient. i think when pregnant women should take it and i think they should start before they're pregnant and first trimester. >> megyn: why is that? start four weeks before you're pregnant and eight weeks after you're pregnant and four weeks before that you're pregnant

and affect the egg with the folic acid. >> it's not the egg, in the beginning the beginning the fetus is developing the nervous-- >> even before the baby starts growing inside of you, you should have lots of folic acid in tu. >> i think so, by the time it gets to the second and third trimester, the brain is formed and too late to make a substantial difference. this is a vitamin, why not take it? you should take it. >> megyn: when you say it's vitamin b it's not the name. when you go to the grocery store you should get it that says folic acid. >> it's not enough, and i think you should get the folic as, and i describe it. >> megyn: and risk for a child with autism. >> not proof, but something worth taking a look at it. >> megyn: dr. siegel. thank you very much. >> thank you. >> megyn: debra is a rare politician, a pro gun democrat running for congress right in the president's old back yard

chicago illinois. and she'll join us to talk about reports that the president's political allies, and top applies, david axelrod, and others are trying to knock her out of this race because of her position on gun control. and i'm calling it the sip seen around the world. a firestorm over marco rubio's theirs quenching moment in the state of the union response, a new debate emerging on "america live" about the media and politics. and this is why people don't want to run for office today. and a group of high school students gets in trouble for chanting "usa" at a recent basketball game. was a show of patriotism or a hateful racist cheer? we'll report, you decide. >> so, i think we're responding to a global issue in terms of how students should be rehe expecting the other school. respecting the other school. so you say men are superior drivers?

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the choice isn't just between big government or big business. what we need is an accountable, efficient and effective government. >> megyn: a media firestorm erupting yesterday in the wake of senator marco rubio's rebuttal to the state of the union address, shock and horror emerging in some circles, you know why, he paused turni paused during his address to take a sip of water. just to give awe flavor how the media outlets got it on right away. reuters, marco rubio's sip of water seen around the world. cbs calls it marco rubio's water-bottle gate moment. (laughter) politico's headline reads, marco rubio's drinking problem. the daily beast, rubio upstaged by water bottle and hollywood reporter media obsesses by the senator get it right, wet tv gaffe. a gaffe? he drank water! so not over

it. and joining me he to discuss it the think tank advocacy organization, and marc thiessen a fellow at the american enterprise speech writer tore george w. bush. tell the truth, simon when you saw that as a democrat did you think, yes, he's out? anybody who could drink water in prime time, this is great! >> honest truth i was so shocked that i shouted and i woke up my dog who was sleeping right next to me. i was-- look. >> megyn: he drank water! >> i know. i think the reason, if i can push my, like he was doing then, the reason that people were surprised frankly expectations for marco rubio are high and i think he's regarded as a serious presidential candidate in 2016 and he's clearly a compelling performer and part of what, he didn't live up to his billing that night. i think that's part of what happened. >> megyn: because he got nervous, because he got thirsty. >> he clearly was a little thir tis and doing this to his head a few times and the water

thing. >> megyn: and not fit for office? >> no, i didn't-- >> if that's true, anybody who sweats or gets thirsty. >> no, this is his big time. a big moment for him in his career and it looked like he just wasn't ready, that's all. >> megyn: and i made fun of simon and the people criticizing senator rubio, marc, give it to you as well. be honest when you sat at home and saw that, did you or did you not cringe? >> i thought it was an awkward moment, sure. >> megyn: you did. everybody did. didn't they? even the crew came out here, we ran the clip and they're all like, oh! because, i don't know what's so weird and compelling about it, but there's something. >> well, you know what? here is the thing, one of the quotes he said it was a gaffe it's not like he said there were 57 states or referred to a navy corpseman or blame benghazi on a youtube video, heook a sip of water, why not talk about the water. everything is going great in

america, right? it's not like north korea exploded a nuclear weapon or added 6 trillion dollars to the debt in 4 years and double on track to double it by the end of obama's term and not like 20 million people are out of work and can't afford to send a carrier group because of the cuts that president obama is about to put forward and let's talk about a bottle of water. and as simon said one of the best responses, sub stanld tiffly to the state of the union we've had and president obama and marco rubio making a case for the free enterprise system. instead of a discussion between two talented politician, articulate cases for their positions we're talking about a bottle of water, i think it's pathetic. >> megyn: here is my question to you, somebody who's been in politics a long time. is this why in part people don't want to run? you know, because they secretly know, he's 41 years old, that they're human and might get nervous, listen, i anchor a national broadcast every day and millions of

people are watching me do in program every day. i give a live speech where i can see the people and there's a couple thousand people and i can see them, i'm just like him. my mouth dries up, i get nervous and i'm like, they can see me. it's different when i can see them. so i get nervous, it's human. >> it is human, but i think it's-- you know, look, this is the big leagues and marco rubio is making the leap from sort of the minor leagues to the major leagues and i think this was a little bit of a stumble in that evolution. i have no doubt that marco rubio is going to be, you know, either a presidential nominee for the republican or close to it of the guy is clear clearly-- he was sweaty, and didn't move the needle much on the economic arguments for the republicans and i think that people were generally disappointed in the performance. megyn, performance is part of the deal. stuff is happening on tv, it's part of the game didn't do a

good part of the game that night. >> megyn: you know, we have a -- maybe the most skilled or atore we've seen in decades in office right now, marc, and a lot of people who would trade that skill, that oratorical skill for somebody who had different policies. i mean, do you think that this is in any way, to steal simon's phrase to move the needle against marco rubio from people who. >> not at all. >> megyn: might otherwise been inclined to back him. >> not at all. i thought he did a fantastic job. whenever anyone looked at president obama policies and questions their motive and only helping the rich and growing up in a family of immigrants and the neighborhood he lives in. doesn't want to defend the rich, he wants to defend his neighbors. that's effective and the problem, my advice if anyone asks you if you're a republican and anyone asks you do you want to respond to the

state of the union address, say no. there's never been anyone emerged from that better than when they went in. >> megyn: mitch daniels did very well last year and then people were saying, why isn't he running for president, he did okay. >> he's perhaps the only one who's emerged from that. >> megyn: he drank the water beforehand. he drank the water beforehand and just as an fyi, that does help as somebody who suffers from dry mouth during public speaking, if you hydrate before the speech that can really help. i don't know if he watches "america live," but senator rubio, maybe he could think about that. >> good advice. megyn you should give him a call. >> megyn: all right. thanks, guys. >> sure, thank you. >> thanks, megyn, happy valentine's day. >> megyn: happy valentine's day to you, too. let me know your thoughts. some of those headlines. the gaffe? send me your thoughts on twitter. follow me@megyn kelly. a case of justice taken to the extreme.

a father watches a drunk driving run down and kill his two young sons 11 and 12 years old. what happened after that, could now land the dad behind bars forever in kelly's court. and new polling finds a big gap between what america thinks about the president's policies and what they think about him. we'll investigate that next hour. plus, a simple cheer at a basketball game raises a question. when and where it might be considered racist for them to chant usa. >> it's nothing to be patriotic or unpatriotic, the tactful the fact that they're making a chant regarding we're from usa and you're not.

>> a debate what is patriotic and what is not after an incident at a high school basketball game. a california school administrator pulls aside four

boys wearing american flag b bandanas and told hem to take them off or leave the game. the boys came back and led a chant of usa, usa. believing the chant to be racist and perhaps to incite violence or hatred, the administrator kicked the boys out of the game. now, the principal has since then said they were told to remove the bandanas before because the schools have diverse student bodies. and joining me now, now it's potentially racist or inciting violence to wear the american bandana or chant usa. what do you make of it. >> the world has gone crazy. your buddy and mine, sean hannity likes to call them a great american. and you know, if you call them a great american, racist,

suspended. i've got an idea why don't we suspend kid for actually saying things that are racial racially derrogatory. racist things happen, but to suspend them and kick them out of a basketball game for chanting usa, usa while wearing an american flag bandana? my goodness, when is it going to end. >> megyn: they were suspended and later lifted after the controversy unfolded. initially they were suspended. i'll take the devil's advocate position, on cinco de mayo kids wore the american flag t-shirts to school and got in trouble for that and the reason they did, because it was cinco de mayo, a school split hispanic and caucasian and they felt it wasn't a message of america, it was we're this, you're that, we're better, you're not. >> and happened in san antonio

and these are not isolated incident. these stories are happening and the problem, megyn, if the kids are simply displaying their patriotism for administrators to interpret that as being defacto racism or implied racism, is bizarre. i mean, and this whole idea of diversity, listen, the hispanic kids in california presumably they're americans, too, the kids from san antonio are american, to make it pejorative and saying it's demeaning or-- >> i don't know the background if the hispanic children are not american if they have other citizenship. >> no, no, i've talked about this a lot on the radio show both to people in california and san antonio. >> no, no, these are american kids. >> megyn: her' hispanic-american. here is what the-- the administrator said to todd on fox radio. >> it it has nothing to do with being patriotic or unpatriotic, it has to do with the fact that they're making a

chant regarding that we're from usa and you're not. now, whether that's the implied intent, that's the way it comes across and we want to make sure we respect everyone. >> megyn: listen, you can see how, usa, usa, standing ahone doesn't seem like it can ever be controversial, but if it's all white students saying it to all hispanic students could it be construed, not about patriotism. >> to say you know it's directed to the hispanic kids, you said that the boys were suspended and based on the superintendent on todd's show, and backtracking, they had no reason to suspend the kids and know what is in the boys' hearts. >> the principal tries to assess the situation and sees it unfold and know the kids, right, who do it, the troublemaker, isn't it, trouble between these two groups before. >> as a republican, i've got

to tell you, politically i'm figuring out a way to expand our message to bring hispanics into the fold and something that republicans are trying to-- i'm not trying to be sensitive. >> megyn: we don't know the affiliation of the chanters. >> i don't want to not be sensitive to some of the concerns, but again, usa, usa, the flag. listen, fly your flag proudly and wear your american flags and stand up to the american in the way of life and in this great country of ours. i'm telling you the country is going crazy and everything good is portrayed as bad. everything bad is portrayed as good. chris dorner has a facebook fan page. crazy things are-- >> that's-- >> and this is, too, usa resulting in suspension. >> megyn: you're a great america. >> god bless you and all that it stands for. >> megyn: and debra is running for a pro gun democrat in chicago, folks, she'll join us live from fen minutes talking

about the president's top political allies and others are trying to knock her out of this race because of her gun control position. another story out of the windy city. chicago is declaring a new public enemy number one, who it is next: for you. it's like a sexy sandwich. [ anouncer ] compare new griddle melts yourself. just $4. it's like a sexy sandwich. it's an epic breakfast sandwich.

>> al capone's plane is arriving in chicago. a sedan is waiting to take him to prison and still sporting his big white hat probably out of style when he gets a chance to wear it again. that's the end of mr. capone and last glimpse of the outside world for many a day to come. >> megyn: wow, chicago in the 1930's. al capone as officially public enemy number one. the city was overrun by mob crime and until capone was caught and shipped off to alcatraz. now for the first time since

prohibiti prohibition, chicago declared a new public enemy number one. mike tobin with that story. >> reporter: you can't afford that when you hear that title public enemy number one, it draws to mind the images of the chicago mob. al capone known for ruthlessness, and controlling the cops and the rum runners from canada. and elliott ness and taking him down. the chicago crime commission says there's a new public enemy number one, out of a cartel of mexico, described as vicious, evil, and powerful, the crime commission say that guzman and the cartel make al capone looks like an amateur. >> alone, over 90% of the marijuana, cocaine, heroin, methamphetamines and other

synthetic drugs sold on the street have come from this cartel. >> reporter: you may know that chicago has a terrific problem with street gangs and violence. murders are part of the south and west side and the d.e.a. says they're linked. they've found willing business members in the street gangs. and why chicago the same way the rum runners, and stock yards and business in chicago, a perfect transportation hub and that means to you, the drug that shows up on your street, ultimately flow through chicago. the mexican authorities are offering 2 million dollar reward, the u.s. 5 million dollar reward, megyn. >> megyn: wow. all right, mike, thanks. well, big news here in "america live" on this valentine's day. the big reveal in the next hour and plus, new claims of bias on a college campus after

this political science professor apparently tells students to avoid specific media outlets when conducting research. and trapped on the carnival cruise ship. in ameri today we're running out of a vital resource we need to compete on the global stage. what we need are people prepared for the careers of our new economy. by 2025 we could have 20 million jobs without enough college graduates to fill them. that's why at devry university, we're teaming up with companies like cisco to help make sure everyone's is ready

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>> fox news alert adding insult to injury for more than 4,000 people on a crippled cruise liner towed back to shore. we are just getting word that their arrival in alabama plus happen right now. and it's been delayed by eight hours, poor people. conditions on the ship almost too terrible to describe on tv and that's where we begin this lovely new hour of "america live." welcome, everyone, i'm megyn kelly. the carnival triumph was supposed to hit the port of mobile, alabama right now. the company says things are taking longer than expected. these are live picture and last hour we got new helicopter shots of the strip, showing the top of it. you see, not much, right?

and you can't see a whole lot. and even told that people are sleeping outside on the ship on the deck because of the stench on board. after four days adrift. passengers have to deal with another full day of disgusting condition. sweltering heat, little power, or food. it could be 11 tonight before they get to dry land. family members awaiting word are worried and frustrated. >> i want her home, in my arms and give her a big hug and everything is going to be okay. >> there was nothing that would have kept either one of us from this, from this moment. the both of those girls will walk off that ship and they will see their mamas. >> megyn: and joining us live from the terminal in mobile, jonathan? >> reporter: megyn, so close and yet, so far. a couple of hours ago, the ship passed the sea buoy the

shipping channel that leads into mobile bay. ordinarily take three hours to get from there to where i am now. but we're told the carnival triumph won't get in until late tonight that that trip is going to take seven to ten hours. some family and friends have gathered outside the cruise terminal where i am, since early this morning, many of them now in cell phone contact with loved ones, we spoke with one couple who have a daughter on board the ship. listen. >> i am going to hug her, tell her i love her and i miss him and i'm going to praise god that she made it it back safe. >> reporter: a lot of people very worried there. other than the few passengers who have loved ones here to pick them up. most can plan on a long bus ride overnight. carnival is giving them a choice of either riding a couple of hours to a hotel in new orleans and then flying to houston tomorrow or riding buses directly to galveston and houston overnight. the company is also giving

each passenger a refund for the cruise, a future cruise and $500. >> let me assure you that no one here from carnival is happy about the conditions on board the ship. and we obviously are very, very sorry about what has taken place. there's no questions that conditions on board the ship are very challenging. . >> reporter: a lot of people have been asking why passengers are going to have to board a bus from here, travel to new orleans to overnight there when there are plenty of hotel rooms in mobile. a carnival official says it's because new orleans has a much larger airport and therefore, there are more charter flights options out of new orleans than there are out of mobile. megyn. >> megyn: all right. jonathan, thank you. as the boat gets closer we're hearing from some passengers on board and hearing from the family and the friends, i'm sure. we'll also hear from the cruiseline and you can check it out as we get it on

foxnews.com. we're tracking a political story out of chicago at this hour. a democrat who supports strong second amendment rights is trying to win a special election to fill the seat vacated by jesse jackson, jr. and this is right in president obama's hometown back yard, outside of chicago. we're hearing reports she's facing strong opposition from members of her own party for being a pro gun lawmaker. and joining me debby who would like be the congresswoman from chicago. >> hello thank you for having me. >> megyn: we're told that david axelrod, a spokesperson from president obama's campaign and supported you in the congressional runs, turning against you because of your stance on the second amendment and it's not like you are pro gun on every

issue, you want stronger background checks, but you're not completely in line with their policies and boy, have they turned on you. your thoughts on it? >> and it's not just them. i think what started it is billionaire mayor from new york coming in with 1.3 million dollars in ads over the last couple of weeks and i think it's not fair that the mayor from new york coming in to buy a house race. and he has, you know, thought that he and everybody else could just come in and say what they want. but it's about the district. it's about what we need to do and just because i want to have some common sense about the culture of violence and talk about what we really need to do about getting the guns out of the hands of criminals, everybody has decided to gang up on me. now, there are 16 people in this race, this special election. and since i'm the front runner, i am the one that is the one with the proven

record, the one that's created jobs, the one that's been in congress before. but i'm the only one that can't be controlled. i'm the one that's not a rubber stamp. everybody's afraid. >> megyn: certainly not on the gun control issue, you're not a rubber stamp and your critic. >> correct. >> megyn: you've heard this, they point to chicago and talk about the horrific gun violence in that city, in 2012 alone, 500 gun related deaths. and they, they think that the president's gun control measures are the answer to that. i know you see it a different way. >> i do. think about this. the state of illinois has cut 187 million dollars out of their mental health budget. cook counties had an assault weapons ban since 1993, but yet, they've got the highest murder rate in the country. there's something wrong with this picture. we need to be creating jobs. we need to be doing things to help our young people stay in school.

i want to put vocational education back in the high school, but again, it's about talking about the culture of violence. nobody wants to talk about that. you know what, i still agree with having background checks and to update our national data base, to have a much more clear way of talking about how to get the guns out of the hands of criminals, but nobody wants to talk about that. nobody wants to talk about how do we let law enforcement do their job. how do we get rid of the gangs, but since i want to talk about the common sense gun control measures. >> megyn: they're against you. >> nobody wants to do that. >> megyn: they're guns you. you do oppose the assault weapons and extended magazine clips and one of the reasons why david axelrod sent out a tweet, your strong standing in the district is ironic, in your view, given the carnage in the district. do you think there's any link-- i used to live in chicago and a lot of -- most of the gun violence that happens there is by, you know, criminals, by

gang members who are shooting each other, there's a real question, congresswoman, as you know, about whether they would abide by these laws, even if we pass them? >> that's exactly true. and that's why the hypocrisy of it all, that they think that if we just pass one more law, and just slap our name on something that all of a sudden everything is going to go away. and i have talked to so many people out there that are just so angry at just one mayor who thinks that he can come in with these ads. there are now three super pacs that have thought that they could come in to just get rid of me because they don't want to talk about common sense. >> megyn: because of this issue, you've he gone to congress twice before and now that this is in the news, this is a deal breaker for them. >> it is and it's a shame, but the nice thing about it, people know me. they know what i'm about and they know that i want to talk about the real issue, which is

education and creating jobs. and they're just, they're continuing to push this issue, which they're getting upset about because it's not working. every time he they do another poll, i'm still in the lead. and i don't think they know what to do with me since i just continue to talk about what's really important to the district. >> megyn: and you raise interesting points about pushing more vocational education about the kids and so often get off on the wrong track on the south side of chicago and cannot be brought back. and trying to intervene early in that path. listen, it's great to have you on, i know it's an open primary and ought to make things interesting for you, but we'll continue to follow it. >> thank you, megyn. >> megyn: thank you, ma'am. questions of bias on a u.s. college campus after a political science professor instructs her students to avoid specific media outlets. and they were told to pull news articles from various journalism outlets and guess

who she decided to ban on her own and guess who else she decided to direct her students to? and guess what parents are very unhappy with this professor here? that's next. and the shocking arrest of an olympic runner to inspired the world with his incredible speed on prosthetic legs. he's now charged with murder. developing details on a valentine's day tragedy next. it seems like people like the president, but not his policies. the growing gap between the policy polls and the personal patrols of president obama. >> no matter what is said, what evidence, what is reported it will not be possible to connect obama to the negativity that's happening in the country today because he's campaigning against it himself. rt burns for you... ♪ i'm up next, but now i'm sging the heartburn blues.

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>> a mega merger taking off with american and u.s. airways announcing a 11 billion dollar deal creating the world's biggest airline. the combined carrier will be called american airlines, but it could be months if not years before passengers see the impact. the america's parent company is under bankruptcy protection and will need court approval for the deal. and us airways will vote for the merger and the justice department will need you to sign off. well, the college controversy in west virginia is now getting national attention. students and parents at west liberty university questioning a political science professor who decided to hand out a course assignment what sources they can and cannot use in research. suggested, bbc, huffing post are great and then says don't use the onion, which is parody or fox news, her exact words,

the tagline fox news makes me cringe, please do not subject me to this biased news station, actually she writes i would almost you rather print off an article from the onion. joining me now is the president of west liberty university. thank you very much for being here, this is had a professor at your university by the name of stephanie wolf and stephanie clearly has a problem with fox news. do you? >> well, first of all, good day, megyn. you know, the purpose of a college is to have students go out and seek as much information as they can about whatever topic that they're researching and have them, and have them form their own opinions and then perhaps to be challenged on those opinions. but this is a case where we obviously have a concern because as much as we will protect the academic freedom of the professor, we'll also protect the academic freedom

of our students to go out and find as many sources as possible. so, obviously, we were concerned. >> megyn: yeah, because the thing is, even if you love fox news, you hate fox news, this person has foreclosed it as an option for her students in politics journal says it designed to promote critical thinking skills increase your understanding and knowledge of politics, understand a broader knowledge of the world around and you and local and international events and apparently ms. wolf only wants a person perspective for the students pursuing that knowledge and all of the things she approved, this is not one fair and balanced organization on there. the huffington post, the new york times, the bbc, your thoughts on that? >> well, obviously the premise that she laid out at the beginning of her syllabus is contradicted later on where she says, makes the comment that you know, we just want you to look at this certain set of research articles.

now, of course, the syllabus says that these are suggested. but then, in big bold print it says do not use fox news and obviously, as i indicated before, that's a-- that's a real problem. you know, from what i understand, she's actually come back now and told her class that she could use whatever they want, but i think, as someone who's in the classroom, that creates a chilling effect upon the students in that classroom who should be encouraged to go out and find as many sources as they possibly can, representing as many different viewpoints as they can. >> megyn: that's the thing. how are the students going to feel now that they know professor wolf and fine, she doesn't need to like fox news even though we're the number one news channel in cable news, that's fine, we don't need her. but to judge, the millions of americans who do like itten watch it and trust it and say she can't even have that. like none of her students are allowed to think about fox news or subject her to it,

shows a real close-mindedness and smallness. >> well, i don't disagree, i mean, as i indicated i think they should be be allowed to look at as many sources as possible. >> megyn: is she going to get fired? >> pardon. >> megyn: is she going to get fired, any discipline of her? >> she's right now-- first of all, this is still an ongoing situation. i will say that she's a temporary professor that came in. our regular professor that teaches political science got called out of the country because his father was ill and she was hired on a one-year contract. and so, and so, i can't comment on specific personnel issues right now. >> megyn: but can i ask you this, if the students in her class wind up getting a lower grade than they think they're entitled to because they do wind up citing fox news, let's say jennifer griffin does some great report out of the pentagon and they want to refer to it, if they do that and they feel they've been marked down, can they come to you and say, sir, i think

professor wolf hasn't quite lived up to her promise upon her reversal? >> well, we'd let it be known that they can first of all go to the chair of the department and then go to the dean and then to the provost, and my office to seek satisfaction. if they felt like they'd been unfairly treated in her classroom, as we would with any student who felt this had' been-- >> we've got to pick up the grammar, if you're going to bash on fox. please do not subject me to the bias-- i would almost you rather print off an article from the onion. really? there should be some proofreading in these materials, sir, don't you agree? >> i certainly agree and we'll go back and regrade her paper. >> megyn: okay, good. interestingly, you know, not for nothing, she apparently told the local station, dave blumquist at wwva. >> right. >> megyn: specifically told him that she did not, that she did not tell the class not to use fox news. she said it repeatedly to him. and look at the. you can look at her own course

material quote, do not use fox news. so there's hea question of her level of honesty. thank you for coming on. give you the last word. >> thank you for having me, megyn. >> megyn: and follow this on twitter: @megyn kelly. he inspired athletes around the world and others with his feat on prosthetic legs now the runner known as blood runner is facing murder charges in connection with the death of his girlfriend. details of now emerging how this may have been a valentine's day surprise gone tragically wrong, or was it? and a father is accused of fatally shooting the drunk driver that he just watched mow down his two young sons. how will jurors react in this case. and is a murder charge in order here. >> they have such an amazing heart. they would do anything for

anybody. >> my heart goes out to the mom, i have kids and know what it's like.

>> it's one of the most-read stories nationwide today. the olympic track star known as bloade runner is now a murder suspect. oscar pistorius is now charged with murdering his girlfriend in what may have been or may not a romantic surprise gone horribly wrong. elizabeth prann with more. >> you're right. initial reports from south mfr can press say that the olympic star oscar pistorius may have mistaken his girlfriend reeva steenkamp, an advocate for domestic violence victims

planned a surprise for her boyfriend. now in police custody. the only person home when they found steenkamp shot dead in his south african home and she was shot four times and pistorius's first hearing is friday. >> and tomorrow, and the reason not appear today the police are still-- >> now, police acknowledge a history of domestic related calls from the home in the past, but refuse to elaborate. and south africa is notorious for crime, robbery and assault and ranks second in the world for the most shooting deaths, while pistorius' home is gated, it's common for people to own their own firearms and tweeted a picture of his 2011 bragging about his score. many of us remember him as an olympic star, a double amputee

runner and made history as the first double amputee to sprint in the olympics. he campaigned for years to be allowed to compete with the other athletes and in 2012 cleared to run with the top competitors, megyn, only six months that we were all watching him shine on the track. >> megyn: oh, that's a tragedy no matter how you look at it. elizabeth prann thanks so much. >> thanks. >> megyn: an announcement here at "america live" we can't tell you what it is next. don't miss it, it's coming up. growing questions about the gap how american feel about the president he personally and his policies. polls show most people think it's headed in the wrong direction and yet, the president is really popular. we'll debate what's behind it and whether president obama is held responsible for the policies he backs. >> it will not be possible to connect obama to the negativity that's happening in the country today because he's campaigning against it

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about a plan that meets your needs. so, what are you waiting for? go call now! we'll finish up here. >> as we watch and wait for the rush return of the carnival triumph. the ship is off the coast of alabama after the tow line broke. it was expected to arrive in alabama this afternoon and longer than expected and the time is pushed back sometime

between 8 p.m. and 11 p.m. this evening and now there is he' another delay. passenger describe filthy conditions on board, very few working titles, long lines for food, sweltering heat and more than 4,000 people on the ship right now. those poor, poor passengers. >> this is what you and i are going to have to learn and learn fast. no matter what is said. no matter what evidence happens, no matter what's reported, it will not be possible to connect obama to the negativity that's happening in the country today because he's campaigning against it himself. that's the reason for the perpetual never ending campaign. it is why in eight years he will never allow himself one day to be seen as actually governing or presiding over any of this. >> rush limbaugh there on the

gap between how americans feel about the president's policies and how they feel about him personally. rece recent gallup following they don't approve of his handseling of most important issues in the country. the things most important to folks, low marks on from gun control to immigration to the economy, but the president felt popular with the same individuals personally. so, what is this disconnect about? and a former aide to james mcgreevey and a political strategist. and tony, and dan henninger, the wall street journal and a fox news contributor. and most say folks who support president obama, he believes they do not associate his policies with what happened to the country and don't look at the spending and debt to the lack jobs they look at him

with the one to do it-- >> he's a master campaigning and took organizing for america, the political arm, operation for action. and you see him going around in the campaign-like stops around the country and pushing his agenda forward because he does have support whether republicans like to admit it or not, on an emotional level with the voters and look the at the election and what i suggest, president obama did something extremely effective. he ran it like a jury trial. he knew he was on trial and found someone else to blame. george w. bush, created reasonable doubt that it was his fault and we saw on the exit polling that people really did not associate the failure of the first four years to this president and he's trying to continue down that road because he has he has as a president a strong bully pulpit and excellent talking directly to voters. whether or not he wants to stay in washington and govern, that's the question. >> megyn: let me ask you, tarra, as a supporter of the

president obama, you look at gallup numbers, high approval rating. from 50 to 60. on taxes, 41 approve. 57% approve and on the economy, 60% disapprove. federal budget deficit. 31% approve. 55% disapprove and yet the country likes him and gives him overall good marks, why? >> well, i think that first of all, i think that one poll that is not necessarily an indicator of where people fall, because if you delve more deeply in the polling and the actual policy positions that the president is putting forth, there's a lot of popular support. first of all, let's look a the campaign as tony referenced. president obama was very clear throughout the campaign on exactly what he wanted to do. there's no confusion about where he stands on these issues and the majority of voters sided with president obama on those issues and so to say that people don't know what he stands for, don't agree with it, i think underestimates their intelligence.

if you look at closing tax loopholes, exxon which surpassed apple as the most profitable company in the world, why are we giving special tax breaks. if there's a choice between medicare being solvent or exxon more money, most side with president obama. and the republicans like tony previously supported now all of a sudden even though the chamber says it's a no-brainer, republicans don't support it. most americans think we should rebuild our bridges and our roads. if you look the at the individual issues, president obama has the support. >> megyn: and what do you think of that. if you listen to her speak and look at the numbers in the last election, they make sense. yes, make sense at this moment, but there's at least one achilles heel, maybe two. the first is in the numbers you just mentioned, 39% of the handling of the economy. the economy at the moment is a little bit flat, but if, as in his first term, unemployment begins to go up over 8% again

and i suspect it is, because the congressional budget office predicted 1.4% growth this year, which would suggest high unemployment, his approval rating is going to come down. second, the president has completely alienated himself from the republicans in congress and everyone said after that aggressive inaugural address he's going to need republicans at some point. this very day, chuck hagel's nomination is beginning to be in trouble because more republicans are willing to support that filibuster. if that hagel nomination goes down and with an unprecedented filibuster, it's going to damage president obama. >> do you think? do you think that people are paying close attention to hagel and whether they're going to hold it against the democrats and not the republicans? >> i think the president's approval depends on beginning those fights and he'll get hurt. >> and that's true, it's the economy, megyn. the president has for four years suggested it wasn't his fault, but how much longer is that actually going to be a viable line to the american people especially now that he

does have four more years. >> megyn: you were saying things like that well in vo advance of the last election, you're going to accept the fact we don't see the world the way you do. do we agree he inherited a bad situation and take him or any other president a longer time to get out of it. >> and given him a huge mandate and rejected the obama mandate in 2010 with a historic-- >> that was two years before, 2012. >> the point being don't overreach and the president has a real solid opportunity right now to get a lot of the stuff that republicans and democrats agree on through congress, but what he has to do is work with congress and that's why i kind of get he very nervous when i see him using as his source of versed kind of attack and going out and holding a campaign rally, rather than summoning people from the hill to get things done. >> and i think the most interesting stuff in here is the stuff about the economy and the tacks and the deficit and so on. does he have a point that okay, four years, maybe, you know, bill clinton stood up

there and said, i am telling you no president could have gotten this done in any four years and now it's going to be five, six, seven and now he's not running for reelection, at what point do they look at this, the guy at the top and say, now i am holding you accountable? >> well, i think that it's both. i think na people do believe that the president, obviously, has control over the economy and what's happening. i think, but at the same time they recognize, i go back further than george w. bush. i think our economy has been in decline for 30 years. we've had a huge gap for people who had money in the united states and don't. and that's beyond george bush and i think that people recognize that dynamic and at the same time of course they want the president to be out there fighting and where i disagree with tony, what's wrong with taking your message and pushing your agenda to the people. if we're saying that government is about the people, why not ask the people to get involved and get engaged in our democracy. >> i don't think it's wrong, but explaining why people are being dissuaded. the president to his credit,

and as you know, many of us were wrong about and we underestimated that correction and saying the right track, wrong track and the direction of the country. he's the president and incumbent. it's referendum on him. and not able to seriously tell people i feel your pain and-- >> i want to ask you about that, here is an interesting point how there are many people who believe this income inequality and that's really the heart of our problem as a country and we need to get to the bottom of that. he's about that, social injustice. income inhe equality and fairness and the right sees as a code for socialistic policies, but many people, i mean, almost half of the people in this country are receiving some sort of government aid or assistance or paycheck or check, and that may be more appealing. >> well, to your point, megyn, how many years can you continue to make this point about problems that are always just out there on the horizon, and if you stick with me, we'll finally get there. he's got one thing be breathing down his back right now and that's the 2016 presidential election, which

is going to, i think, start earlier than ever. because the amounts of money you have to raise. >> oh, good gosh. >> and if the economy-- i know it's depressing, but those candidates, if the economy begin to fail, they're going to-- or sink, they're going to put distance between them and president obama and i think a lot of democrats are going to pull back from him at some point. >> megyn: it's amazing, the president only has about a hundred days in the second term to get it done and speak to your point and moving on whether rubio could be the republican candidate despite that he drank water. >> a lot of water. >> megyn: thank you, great job. coming up next, a heart went muching case in kelly's court. a lonestar father is accused of fatally shootings a drunk driving months after he watched that driver hit and kill his two young sons and now he's charged with murder. could this punishment actually fit this crime? we'll talk about it next. ♪

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>> new charges coming down in an emotional case of a heart broken father taking justice in his own hands. this texas dad accused of shooting and killing a drunk driver moments after he watched that man run down and kill his two young sons, just steps from their home. trace gallagher has a story live in our west coast news room. trace. >> reporter: it happened outside of houston. 31-year-old and his 11 and 12 year old sons were pushing the broken down pickup truck toward their home a hundred yards away. the boy's mom and younger siblings were inside the truck, just then a chevy malibu driven by the 21-year-old crashed into the truck killing those two boys and critically injured the 11-year-old and later died at the hospital. and the dad ran to the home and came back to the scene and when police showed up the driver of the chevy malibu, who was legally drunk, had a

gunshot wound to the head. here is the sheriff. >> when we have witness statements that say that we have david leaving the scene going towards his residence and returning a few minutes later and he was the only person standing around jose's vehicle when the gunshot was fired. >> reporter: the only person standing around, but they still have not found the gun, but they did find a holster and ammunition inside the dad's house and now waiting for gun residue test to see dad fired a gun and charged with murder and the family of the dead drunk driver says the car crash was an accident what happened after was murder and they believe the dad should be punished for the full extent of the law. back to you. >> megyn: trace, thank you. and kelly's court is back in session on the docket today. is a murder charge appropriate in this case. joining me now is mercedes

colwin and it's a heart breaking case, and mark eiglarsh, and you can only imagine what the father saw happen 11 and 12-year-old mowed down by a drunk driver and let's assume for the purposes of this just in question that he did it it got the gun and shot at that guy to death. is murder the right charge, mark? >> yes, it is. and let me just first say, i feel extraordinary compassion for what he went through. i can't imagine, i don't want to imagine what it would be like to lose two sons. i have two sons, my oldest is the same age of the one that he lost, one of the ones he lost so my first inclination would want to be to kill someone who did any harm to my child, but that being said, by law, without question, it's murder. you don't get to act like you're in the wild, wild west and act as judge, jury and executioner. where do you factor in the facts and circumstances is in sentencing. you could use all of that to

mitigate and perhaps get a much different sentence, a very low sentence compared to those who are accused of the same crime under different circumstances, but you've got to prosecute him. you do. >> megyn: this guy, not only were his 11 and 12-year-old boy were killed, but his wife, his eight-year-old daughter and three month old son were in the truck that the drunk driver hit. so the guy endangered his entire family including his little baby, eight-year-old girl and two boys die in front of him. one died in front of him one a short time after. >> unbelievable. >> megyn: you tell me, murder? >> i can't believe-- first of all, i think it's overcharge. if you're going to charge him with something, look at something lesser, that's what will happen with the jury. if you overcharge the jury will say we can't blame this person. even parents for this today. i can't tell you how many people said, if i were faced with that, i would have done the same thing. diminished capacity, temporary insanity, the buzz words on

the internet and e-mails flying back and forth and everyone is shocked and says you know what if that drunk driver was a child killer, he was drunk, twice the legal limit. i would have done the same thing. this is justice served. >> megyn: what about that, what about the charging the father, the bereaved father the manslaughter the same way they'll charge a spouse with manslaughter if he finds out the wife is cheating and kills her in the heat of passion? >> well, i think they can and ultimately offer a deal and reduce the charge to manslaughter and a lot of different options available and it's technically murder and up to the defense to argue the wonderful arguments that mercedes is making, a jury who will kind of give a jury pardon. you know what, he needed to be-- he needed to be killed. i had a case in texas they said did he need to be killed? what? >> that's what's going to happen. >> megyn: in some cases where it's self-defense, you can make that argument.

that's not available to him under these circumstances, but mercedes, mark is raising a good point. the definition of murder, just murder which he has been charged with in texas is intentionally or knowingly causing the death of another. i mean, that's. >> that's what it is. >> megyn: if he's done this, and the charge, the sentence he would be facing if convicted of the first degree felony between 5 and 99 years, why isn't mark right, mitigation comes in terms of the sentencing? >> i believe if he takes the stand or obviously they're going to make the legal argument they're going to say he was so temporarily insane, he couldn't make the intent. he wasn't thinking clearly and that's where the diminished capacity, the jurors have equitted on that. >> if you're the defense attorney you go for acquittal, temporarily insane and not accountable for action. >> looking at the

circumstances and talking to people preparing for this the everyone says my god this man had to be temporarily insane watching this happen to his children. >> megyn: what about the guy that's shot obviously no charges against him because he's been killed. any legal liability for his family based on his actions in you know, this vehicular manslaughter at least? >> interesting, could the family be held responsible for anything that he did? i don't-- >> if he had any assets or estate. >> they would definitely sue, they could sue for that, wrongful death for those two children wrongful death, mark, that's what they would sue for. they would sue his-- what assets does a 20-year-old drive a malibu and probably none, but that's, if there's some insurance, that's exactly what they would sue. >> if there is insurance, i suppose, i suppose. >> megyn: they say his blood alcohol content was at .175. and there is--

>> megyn. >> megyn: there is no question about whether he was actually guilty. they haven't found the gun. >> i was going to throw that out. what if they used an alcoholic swab to get his blood and turns out he wasn't impaired. >> megyn: i've got to go. a special surprise after the break. take advil, and maybe have to take up to four in a day. or take aleve, which can relieve pain all day with just two pills. good eye. [ male announcer ] the rhythm of life. [ whistle blowing ] where do you hear that beat? campbell's healthy request soup lets you hear it... in your heart. [ basketball bouncing ] heart healthy. great taste. mmm... [ male announcer ] sounds good. it's amazing what soup can do.

ask >> love is in the air on this valentine's day. what about rain and snow? janice dean is here with a special forecast, hey, jd. >> how is your forecast. and maybe some cloudy skies for romance, arkansas. >> megyn: are you wearing a boa? >> i am. it's a cheesy forecast, you've got to look the part, ladies. valentine, nebraska 24 degrees

and a few light snow flurries for loveland, colorado and in case you're doing some skiing or by the fire and the chalet with your honey exchanging gifts and speaking of gifts, you and doug exchange cheesy valentine's day gifts? you know, every valentine's day we always struggle to find just the right gift. >> this is nice. >> megyn: and yet, yeah, that's very nice. and yet, this year, i believe that we found the perfect solution. >> happily doug and i are expecting another baby. >> yea! here we go! she knew as you can see, we're so excited for you. >> and we need john and abby to come out and give gifts for you for the occasion. >> oh, no, get out. >> another boa! and i'd like to thank the academy. >> this is not the speech. >> thank you so much. >> we are so happy for you, i love you, i love you, i love sharing your life on television, you're just the

best and such a good friend and i'm so fortunate. >> thank you, love. thank you jd. we've traveled so many miles together and cued up the video when doug and i were about to get married. this is our, right before when we were dating and this is back on america's news room with hammer and going to get married and look who was there, my pal hemmer and the long haired me and the thin me and there's you, gorgeous. >> oh, my gosh. >> megyn: it's funny and thank the crew out here and i go out and i go, i'm pregnant and they go, we know, like my. >> you're so hungry. >> megyn: not a lot of stand-up shots in the future. >> congratulations. >> megyn: thank you. love you jd. >> love you, too, honey. >> megyn: and they'll be

getting a new little brother or sister come this summer. thanks, guys for sharing this with me. we'll be right back. hi. i'm henry winkler.

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